On this inauguration day of another Illinois President, it is worth reflecting on patentee Abe Lincoln's wise perspective on innovation and the ideal role of patents. In this light, I view your concerns about broken symmetry as a measure of the gap between the ideal and the real, between theory and practice.
You suggest that the cost of prosecuting patents has decreased, but my clients would disagree, noting that over the past couple of years we face a heavier burden to satisfy heightened standards for patentability imposed by the courts and the PTO. Litigation costs remain very high, not so much because of a lack of qualified lawyers, but because of uncertainty about how to interpret patent claims, so that many complex issues of law and fact remain unresolved after extensive discovery. Your third example, Bayh-Dole Act patenting by universities, does not in and of itself raise transaction costs of clearing IP ownership -- rather, I might argue that many of the licensing specialists in technology transfer offices actually streamline licensing because of their expertise and know-how.
Your concept of a "rich ecosystem" of innovation is quite sound. And yes, in Driving Innovation, I describe how IP's oscillation between access and exclusivity may operate as a dynamo or motor for the innovation cycle. (In my book, I occasionally mix the metaphor of a biological ecosystem with that of a machine.) In the innovation cycle, every creative person benefits from access to a wealth of information from which new ideas arise. The creator can then control dissemination of the new ideas via IP rights, exerting control over their use and duplication. This is the mechanism by which companies pool the innovations of employers, and individuals can attract the investment needed to put the idea to work as a product or service or published work. Exclusivity and control lead to investment and dissemination, and thus, heightened access by the public, as the product or service or information becomes widely available. Finally, the fruits of the new idea become widely accessible by society, and can be used to feed the next round of innovation. Access feeds exclusivty, and exclusivity feeds access, like the alternating current in an electric motor. In this view, the key is to get the balance right at each phase of the cycle, and as you say, between big and small players. Because ultimately, society at large benefits when creators and the public have both sufficient access and sufficient exclusivity to make innovation worthwhile.
Coming back from theory to your practical comments, it would certainly be nice to have more flexibility in presenting inventions involving images, whether color "heat maps" of biological data or image processing software. However, a reasonable consistency in the presentation of material is a compromise most of us can accept. Also, you may have hit on one of the Dudas' administration's suceesses, in which the public access PAIR system and electronic filing have finally begun to work well. And (you've got quite a few practical ideas, Michael) it would certainly improve markets in patents if more information about licensing terms was publicly available. But this goes again to the delicate balance between the innovator's right to restrict access and the public's benefit to having access. There are many good grounds for a patentee to keep the economic terms of an agreement confidential, thus blending patent protection for technology inventions with trade secret protections for business information. I didn't find the details of Lemley and Myhrvold's paper -- perhaps this is another theory that does not yet have a viable mechanism for putting it into practice.
Most of the day-to-day projects that arise in my representation of clients involve some aspect of these questions -- how to access a computer program or biological reagent or use a piece of hardware or a song; or how to protect a new medical device or branded product from copyists. Although a brief exchange via blog is inadequate to the task, all of intellectual property -- theory and practice -- can be understood as part of this larger balance between exclusivity and access.
Recent Comments